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Exhibit 1.1
AMERICAN RESIDENTIAL EAGLE, INC.
MORTGAGE-BACKED CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
(Standard Terms)
[UNDERWRITER] New York, New York
[Acting on behalf of itself and, if ________________, 199_
applicable, as the Representative of the
several Underwriters named in Schedule 1 to
the Terms Agreement (in either such capacity
sometimes herein the "Representative")]
[ADDRESS]
Ladies and Gentlemen:
American Residential Eagle, Inc. (the "Company" or the
"Depositor"), a corporation organized and existing under the laws of the State
of Delaware and which is a wholly owned subsidiary of American Residential
Investment Trust, Inc., a Maryland corporation ("AmREIT"), may issue, from time
to time, securities entitled Mortgage-Backed Certificates (the "Certificates")
in one or more series, and within each series, in one or more classes, in one or
more offerings on terms determined at the time of sale (each such series, a
"Series" and each such class, a "Class"). Each Series of the Certificates will
be issued pursuant to a separate certificate trust agreement [199_] (each, a
"Certificate Trust Agreement") to be dated as of the respective cut-off date
(each, a "Cut-off Date") between the Company and [ ], a banking corporation
organized under the State of ____________________, as certificate trustee (the
"Certificate Trustee"). Capitalized terms used but not defined herein shall have
the meanings given to them in the related Trust Agreement.
The Certificates issued under each Trust Agreement will represent
the entire beneficial ownership interest in a trust fund (the "Certificate Trust
Fund") established by such Trust Agreement. The assets of each Trust Fund will
consist primarily of a single Collateralized Mortgage Bond (an "Underlying
Bond") to be issued by American Residential Eagle Bond Trust [199_-_] (each a
"Bond trust" or a "Bond Issuer"), a statutory business trust established under
Delaware law pursuant to an amended and restated deposit trust Agreement (each,
a "Deposit Trust Agreement") between the Depositor and [ ], a banking
corporation organized under the laws of the state of [ ] (each, an "Owner
Trustee").
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Each Underlying Bond will be issued pursuant to an indenture (the
"Bond Indenture") between the Bond Issuer and [ ], a banking corporation
organized under the laws of the State of [ ] (each, a "Bond Trustee"). An
Underlying Bond will be secured by and represent the right to receive all of the
payments received on or with respect to a pool (the "Mortgage Pool") of
conventional [fixed][adjustable] rate mortgage loans (the "Mortgage Loans")
secured be first liens on one- to four-family residential properties having the
original terms to maturity specified in the related Terms Agreement referred to
herein below. All of such Mortgage Loans will have been deposited with the Bond
Issuer by the Depositor which, in turn, will have been acquired by the Depositor
from AmREIT pursuant to an Agreement (the "Mortgage Loan Purchase Agreement")
between the Depositor and AmREIT. AmREIT will be the manager of the Bond Issuer
pursuant to a management agreement (the "Management Agreement") entered into
between AmREIT and the Bond Issuer.
Pursuant to the Bond Indenture, the Bond Issuer on or prior to
the related Closing Date (as defined below) will pledge, transfer and assign
without recourse to the Bond Trustee all of its right, title and interest in and
to each Mortgage Loan and all other assets included in the Bond Trust (the
"Mortgage Collateral") and will assign the Underlying Bond to the Depositor for
deposit to the Certificate Trust Fund in order to support the issuance of a
Series of Certificates.
The Mortgage Loans in each Mortgage Pool will be serviced
pursuant to a master servicing agreement (each, a "Master Servicing Agreement")
among the Bond Issuer, the Bond Trustee and [ ] as master servicer (the "Master
Servicer"). On or prior to the Closing Date, as to any Mortgage Loans not being
directly serviced by the Master Servicer, the Master Servicer will enter into or
be assigned mortgage servicing agreements (each, a "Servicing Agreement") with
certain servicers (the "Servicers").
If so specified in the related Terms Agreement, one or more
elections may be made to treat the assets of each Certificate Trust Fund as a
financial asset securitization investment trust (each, a "FASIT") for federal
income tax purposes.
Whenever the Company determines to make an offering of
Certificates (each, a "Certificate Offering") pursuant to this Agreement through
you, it will enter into an agreement (the "Terms Agreement") with the
Underwriter (which shall include you, whether acting alone in the sale of the
Certificates, in which case any reference in this Agreement to you as
"Representative" of the Underwriters shall be deemed to refer to you in your
individual capacity as Underwriter of the Certificates, or as a member of an
underwriting syndicate) providing for the sale of specified Classes of Offered
Certificates (as defined below) to, and the purchase and public offering thereof
by, you. Each such Certificate Offering which the Company elects to make
pursuant to this Agreement shall be governed by this Agreement, as supplemented
by the related Terms Agreement. Each Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, shall specify, among other
things, the Classes of Certificates to be purchased by the Underwriter (the
"Offered Certificates"), the principal balance or balances of the Offered
Certificates, each subject to any stated variance, and the price or prices at
which such Offered Certificates are to be purchased by the Underwriter from the
Company.
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1. Representations and Warranties. (a) The Company represents and
warrants to and agrees with the Underwriter, as of the date of the related Terms
Agreement, that:
(i.) The registration statement specified in the
related Terms Agreement, on Form S-3/S-11, including a
prospectus, has been filed with the Securities and Exchange
Commission (the "Commission") for the registration under the
Securities Act of 1933, as amended (the "Act"), of collateralized
mortgage bonds and mortgage-backed certificates issuable in
series, which registration statement has been declared effective
by the Commission. Such registration statement, as amended to the
date of the related Terms Agreement, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the
effective date of the Registration Statement, is hereinafter
called the "Registration Statement", and such prospectus, as such
prospectus is supplemented by a prospectus supplement relating to
the Offered Certificates of the related Series, each in the form
first filed after the date of the related Terms Agreement
pursuant to Rule 424(b) under the Act, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act which were filed under the Exchange Act on or
before the date of such prospectus supplement (other than any
such incorporated documents that relate to Collateral Term Sheets
(as defined herein))(such prospectus supplement, including such
incorporated documents (other than those that relate to
Collateral Term Sheets), in the form first filed after the date
of the related Terms Agreement pursuant to Rule 424(b) is
hereinafter called the "Prospectus Supplement"), is hereinafter
called the "Prospectus". Any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the
Registration Statement, the Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of
any document under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") after the effective date of the
Registration Statement or the issue date of the Prospectus or
Prospectus Supplement, as the case may be, deemed to be
incorporated therein by reference pursuant to Item 12 of Form S-3
under the Act.
(ii.) The related Registration Statement, at the
time it became effective, and the Prospectus contained therein,
and any amendments thereof and supplements thereto filed prior to
the date of the related Terms Agreement, conformed in all
material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder; on the date of the
related Terms Agreement and on each Closing Date (as defined in
Section 3 below), the related Registration Statement and the
related Prospectus, and any amendments thereof and supplements
thereto, will conform in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder; such Registration Statement, at the time
it became effective, did not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated
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therein or necessary to make the statements therein not
misleading; such Prospectus, on the date of any filing pursuant
to Rule 424(b) and on each Closing Date, will not include any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading; and
the Detailed Description referred to in such Prospectus with
respect to the Mortgage Collateral securing the Underlying Bond,
on each Closing Date and the date of any filing thereof under
cover of Form 8-K, will not include any untrue statement of a
material fact or omit to state any information which such
Prospectus states will be included in such Detailed Description;
provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from
(A) such Registration Statement or such Prospectus (or any
supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
the Underwriter specifically for use in the preparation thereof
or (B) any Current Report (as defined in Section 5(b) below), or
in any amendment thereof or supplement thereto, incorporated by
reference in such Registration Statement or such Prospectus (or
any amendment thereof or supplement thereto).
(iii.) The Depositor has been duly organized and is
validly existing as a corporation in good standing under the laws
of the state of Delaware, with full corporate power and authority
to own its assets and conducts its business as described in the
Prospectus, is duly qualified as a foreign corporation in good
standing in all jurisdictions in which the ownership or lease of
its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not have a material adverse effect on the Depositor, and the
Depositor is conducting its business so as to comply in all
material respects with the applicable statutes, ordinances, rules
and regulations of each jurisdiction in which it is conducting
business.
(iv.) The Certificates of the related Series will
conform to the description thereof contained in the related
Prospectus; will each, if rated at the time of issuance in one of
the two highest rating categories by a nationally recognized
statistical rating organization, be when issued a "mortgage
related security" as such term is defined in Section 3(a)(41) of
the Exchange Act, and will each on the related Closing Date be
duly and validly authorized, and, when validly executed,
countersigned, issued and delivered in accordance with the
related Trust Agreement and sold to you as provided herein and in
the related Terms Agreement, will each be validly issued and
outstanding and entitled to the benefits of the related Trust
Agreement.
(v.) Neither the issuance nor sale of the
Certificates of the related Series nor the consummation of any
other of the transactions herein contemplated, nor the
fulfillment of the terms hereof or of the related Terms
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Agreement, will conflict with or result in the breach of, or
constitute a default under, any statute, order or regulation
applicable to the Depositor of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over the Depositor or with any organizational document of the
Depositor or any instrument or any agreement under which the
Depositor is bound or to which it is a party or result in the
creation or imposition of any lien, charge, or encumbrance upon
any of the Depositor's property pursuant to the terms of any
instrument or agreement.
(vi.) This Agreement and the related Terms
Agreement have been duly authorized, executed and delivered by
the Depositor.
(vii.) At or prior to the related Closing Date, the
Depositor will have entered into the related Certificate Trust
Agreement and, assuming the due authorization, execution and
delivery thereof by the Certificate Trustee, such Certificate
Trust Agreement (on such Closing Date) will constitute the legal,
valid and binding agreement of the Depositor enforceable in
accordance with its terms, subject as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights and to general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(viii.) At the applicable Closing Date, any
Mortgage Loans included in the related Mortgage Pool will meet
the criteria for selection described in the Prospectus.
(ix.) At the applicable Closing Date, and Mortgage
Note and each Mortgage included in the Bond Trust and pledged to
the Bond Trustee under the Bond Indenture will constitute a valid
and binding instrument, enforceable in accordance with its terms,
subject, as enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors' rights and to general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity
or at law).
(x.) At the applicable Closing Date, the Underlying
Bond will constitute a valid and binding instrument, enforceable
against the Bond Issuer in accordance with its terms, subject, as
to enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights and
to general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at
law).
(xi.) At the date of its execution and delivery,
each Servicing Agreement and the Master Servicing Agreement, if
any, constituted or will constitute a valid and binding
agreement, and is or will be enforceable by the Bond Issuer and
the Bond Trustee against the applicable Servicer or Master
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Servicer, as the case may be, in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency or other similar laws affecting
creditors' rights generally as from time to time in effect, and
to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(xii.) Neither the Bond Trust created pursuant to
the Deposit Trust Agreement nor the Certificate Trust Fund
created pursuant to the Certificate Trust Agreement is an
investment company subject to registration with respect to each
issuance of Collateralized Mortgage Bonds or each Series of
Certificates, as the case may be, under the Investment Company
Act of 1940, as amended (the "Investment Company Act") and is not
under the control of an investment company.
(xiii.) At the applicable Closing Date, the
representations and warranties made by the Depositor under the
applicable Deposit Trust Agreement and applicable Certificate
Trust Agreement will be true and correct in all material
respects.
(xiv.) At the time of execution and delivery of the
applicable Deposit Trust Agreement and applicable Bond Indenture,
the Bond Issuer will be the beneficial owner of the Mortgage
Collateral being pledged to the Bond Trustee pursuant thereto and
being assigned to the Depositor for deposit into the Certificate
Trust Fund, free and clear of any lien or other encumbrance, and
the Bond Issuer will not have assigned to any other person any of
its right, title and interest in the Mortgage Collateral.
(xv.) At the time of execution and delivery of the
applicable Certificate Trust Agreement, the Depositor will have
the power and authority to transfer the Underlying Bond to the
Certificate Trustee and to transfer the Certificate to the
Underwriter and, upon execution and delivery of the Certificate
Trust Agreement and delivery to the Underwriters of the
Certificates, the Underlying Bond will have been duly and validly
assigned to the Certificate Trustee in accordance with terms of
the Certificate Trust Agreement.
(xvi.) Any taxes, fees and other governmental
charges in connection with the execution, delivery and issuance
of this Agreement, the applicable Deposit Trust Agreement, the
Certificate Trust Agreement and the Certificates have been or
will be paid at or prior to the applicable Closing Date.
(xvii.) At the applicable Closing Date with respect
to a Series, the Certificates shall have received the rating or
ratings specified in the related Terms Agreement.
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(xviii.) This Agreement does, and the applicable
Deposit Trust Agreement, Bond Indenture, Master Servicer
Agreement, Mortgage Loan Purchase Agreement and Management
Agreement (collectively, the "Transaction Documents") will,
conform in all material respects to the descriptions thereof
contained in the Prospectus.
2. Purchase and Sale. Subject to the execution of the Terms
Agreement for a particular Certificate Offering and subject to the terms and
conditions and in reliance upon the representations and warranties set forth in
this Agreement and such Terms Agreement, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, all, but
not less than all, of the related Offered Certificates at the purchase price
therefor set forth in such Terms Agreement (the "Purchase Price").
The parties hereto agree that settlement for all securities sold
pursuant to this Agreement and the applicable Terms Agreement shall take place
on the settlement date agreed upon at the time of the related transaction and
set forth as the "Closing Date" in such Terms Agreement and not as set forth in
Rule 15c6-1(a) of the Exchange Act.
3. Delivery and Payment. Subject to the execution of the Terms
Agreement for a particular offering of Certificates, and subject to the terms
and conditions and in reliance upon the representations and warranties set forth
in this Agreement and such Terms Agreement, the Depositor agrees to sell to
[each][the]Underwriter, [severally and not jointly], and [the][each] Underwriter
agrees, [severally and not jointly], to purchase from the Company, the
[respective] original principal amounts of the related Certificates set forth in
the Terms Agreement opposite the name of such Underwriter, [plus any additional
original principal amount of Certificates which such Underwriter may be
obligated to purchase pursuant to Section 10 hereof], at the purchase price
therefor set forth in such Terms Agreement. Delivery of and payment for the
Offered Certificates of a Series shall be made at the offices of [ ], at 10:00
A.M., [ ] time, on the Closing Date specified in the related Terms Agreement,
which date and time may be postponed by agreement between the Underwriter and
the Company (such date and time being herein called the "Closing Date").
Delivery of such Offered Certificates shall be made by the Company to the
Underwriter against payment by the Underwriter of the Purchase Price thereof
specified in the Terms Agreement to or upon the order of the Company by wire
transfer in federal or other immediately available funds or by check payable in
federal funds, as the Company shall specify no later than five full business
days prior to such Closing Date. The Certificates to be so delivered will be in
definitive fully registered form, or maintained through the facilities of the
Depository Trust Company, as indicated in the applicable Prospectus Supplement,
in such names and in such authorized denominations as the Underwriter may
request not less than two full business days in advance of each Closing Date.
The Company agrees to notify the Underwriter at least two
business days before each Closing Date of the exact principal balance evidenced
by the Offered Certificates and to have such Offered Certificates available for
inspection, checking and packaging in New York,
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New York, no later than 12:00 noon New York time on the business day prior to
such Closing Date.
4. Offering by the Underwriter. It is understood that the
[several] Underwriter[s] propose[s] to offer the Offered Certificates of the
related Series for sale to the public as set forth in the related Prospectus.
5. Agreements. The Company covenants agrees with you [and the
several the Underwriter[s] that:
(b) The Company will cause the Prospectus as supplemented
by a Prospectus Supplement relating to the Offered Certificates to be
filed pursuant to Rule 424 under the Act and will promptly advise the
Underwriter when such Prospectus as so supplemented has been so filed,
and prior to the termination of the Certificate Offering to which such
Prospectus relates also will promptly advise the Underwriter (i) when
any amendment to the related Registration Statement specifically
relating to such Offered Certificates shall have become effective or any
further supplement to such Prospectus has been filed, (ii) of any
request by the Commission for any amendment of such Registration
Statement or Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of such Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt
by the Company of any written notification with respect to the
suspension of the qualification of such Offered Certificates for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose whether by the Commission or any other applicable authority
administering any state securities or Blue Sky Law. The Company will not
file any amendment of the related Registration Statement or supplement
to the related Prospectus (other than any amendment or supplement
specifically relating to one or more Series of Certificates other than
the Series that includes the related Offered Certificates) unless the
Company has furnished the Underwriter with a copy for its review prior
to filing. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(c) The Company will cause any Computational Materials and
any Structural Term Sheets (each as defined in Section 8 below) with
respect to the Offered Certificates of a Series that are delivered by
the Underwriter to the Company pursuant to Section 8 to be filed with
the Commission on a Current Report on Form 8-K (each such filing of such
materials, a "Current Report") pursuant to Rule 13a-11 under the
Exchange Act on the business day immediately following the later of (i)
the day on which such Computational Materials and Structural Term Sheets
are delivered to counsel for the Company by the Underwriter prior to
2:00 p.m. New York time. and (ii) the date on which this Agreement is
executed and delivered. The Company will cause one Collateral Term Sheet
(as defined in Section 9 below) with respect to the Offered Certificates
of a Series that is delivered by the [Underwriter][Representative] to
the Company in
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accordance with the provisions of Section 9 to be filed with the
Commission on a Current Report pursuant to Rule 13a-11 under the
Exchange Act on the business day immediately following the day on which
such Collateral Term Sheet is delivered to counsel for the Company by
the Underwriter prior to 2:00 p.m. New York time. In addition, if at any
time prior to the availability of the related Prospectus Supplement the
Underwriter has delivered to any prospective investor a Collateral Term
Sheet that reflects, in the reasonable judgment of the Underwriter and
the Company, a material change in the characteristics of the Mortgage
Collateral for the related Series from those on which a Collateral Term
Sheet with respect to the related Series previously filed with the
Commission was based, the Company will cause any such Collateral Term
Sheet that is delivered by the Underwriter to the Company in accordance
with the provisions of Section 9 to be filed with the Commission on a
Current Report on the business day immediately following the day on
which such Collateral Term Sheet is delivered to counsel for the Company
by the Underwriter prior to 2:00 p.m. New York time. In each case, the
Company will promptly advise the Underwriter when such Current Report
has been so filed. Each such Current Report shall be incorporated by
reference in the related Prospectus and the related Registration
Statement.
(d) If, at any time when a Prospectus relating to the
Offered Certificates of a Series is required to be delivered under the
Act, any event occurs as a result of which the related Prospectus as
then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they were
made not misleading, or if it shall be necessary at any time to amend or
supplement the related Prospectus to comply with the Act or the rules
thereunder, the Company promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance.
(e) The Company will furnish to the Underwriter and
counsel for the Underwriter, without charge, as many signed copies of
the related Registration Statement (including exhibits thereto) and, so
long as delivery of a Prospectus by the Underwriter or dealer may be
required by the Act, as many copies of the related Prospectus and any
supplements thereto (other than exhibits to the related Current Report)
as the Underwriter may reasonably request.
(f) The Company will furnish such information, execute
such instruments and take such actions as may be reasonably requested by
the Underwriter to qualify the Offered Certificates of a Series for sale
under the laws of such jurisdictions as the Underwriter may designate,
to maintain such qualifications in effect so long as required for the
distribution of such Offered Certificates and to determine the legality
of such Offered Certificates for purchase by institutional investors;
provided, however, that the Company shall not be required to qualify to
do business in any jurisdiction where it is not qualified on the date of
the related Terms Agreement or to take any action which
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would subject it to general or unlimited service of process in any
jurisdiction in which it is not, on the date of the related Terms
Agreement, subject to such service of process.
(g) So long as the Offered Certificates of a Series are
outstanding, the Company will furnish to the Underwriter copies of (a)
the annual independent public accountants' servicing report furnished to
the Certificate Trustee pursuant to Section [ ] of the related
Certificate Trust Agreement (b) copies of all reports filed with the
Commission and copies of each notice published or mailed to holders of
the Certificates pursuant to the related Certificate Trust Agreement;
and (c) such other information with respect to the related Certificate
Trust Fund or its financial condition or results of operation as you may
reasonably request, including but not limited to information necessary
and appropriate to the maintenance of a secondary market in the
Certificates of such Series.
(h) Whether or not the transactions contemplated hereby
and by the related Terms Agreement shall be consummated, the Company
shall be responsible for the payment of any costs and expenses for which
details are submitted, in connection with the performance of its
obligations under this Agreement and the related Terms Agreement,
including, without limitation, (a) the cost and expenses of printing or
otherwise reproducing the related Registration Statement or Prospectus,
this Agreement, the related Terms Agreement, the Transaction Documents
and the Offered Certificates, and (b) the cost of delivering the related
Offered Certificates to the office of the Underwriter, insured to the
satisfaction of the Underwriter (it being understood that, except as
provided in this paragraph (g) and in Section 7 hereof, the Underwriter
will pay all its own costs and expenses, including the fees of counsel
for the Underwriter, transfer taxes on resale of any Offered
Certificates by it, advertising expenses connected with any offers that
it may make, the fees of the independent certified public accountants
with respect to its letters furnished pursuant to Section 6(k) or
Section 6(l) of this Agreement, the fees of any firm of public
accountants selected by the Underwriter with respect to their letter
furnished pursuant to Section 8(c) of this Agreement, any other costs
and expenses specified in the related Terms Agreement as "Additional
Expenses", and all expenses (e.g., shipping, postage and courier costs)
associated with the delivery of the related Prospectus to prospective
investors and investors, other than the costs of delivery to the
Underwriter's facilities, provided, that if courier services (other than
overnight delivery services utilized in the ordinary course of business)
are required to ensure that such Prospectus is delivered to investors on
the day immediately preceding the related Closing Date, the Company will
pay such courier expenses).
6. Conditions to the Obligations of the Underwriter. The
obligations of the [several] Underwriter[s] named in the Terms Agreement to
purchase the Offered Certificates of any Series shall be subject to the accuracy
in all material respects of the representations and warranties on the part of
the Company contained in this Agreement, as supplemented by the related Terms
Agreement, as of the respective dates thereof and the related Closing Date, to
the accuracy of the statements of the Company made in any applicable officers'
certificates pursuant
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to the provisions hereof, to the performance by the Company of its obligations
under this Agreement and such Terms Agreement and to the following additional
conditions applicable to the related Certificate Offering:
(a) No stop order suspending the effectiveness of the
related Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) No Underwriter shall have advised the Depositor that
the Registration Statement or the Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact that in [your
opinion][the opinion of the Representative] is material, or omits to
state a fact that in [your opinion][the opinion of the Representative]
is material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) ▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, shall have
furnished to the Underwriter an opinion, dated the related Closing Date,
to the effect that:
(i.) this Agreement and the related Terms Agreement
have been duly authorized, executed and delivered by the
Depositor;
(ii.) each of the related Transaction Documents to
which the Depositor or the Bond Issuer is a party has been duly
authorized, executed and delivered by the Depositor or the Bond
Issuer, as the case may be, and is a legal, valid and binding
agreement of such party enforceable against the Depositor in
accordance with its terms;
(iii.) the issuance of the Certificates of the
related Series and sale of the related Offered Certificates has
been duly authorized by all requisite corporate action on the
part of the Company and the Certificates of such Series, when
duly countersigned by the Certificate Trustee in accordance with
the related Certificate Trust Agreement, will be validly issued
and outstanding and entitled to the benefits of such Trust
Agreement;
(iv.) the issuance of the Underlying Bond has been
duly authorized by the Depositor and the Bond Issuer and when
such Bond has been duly executed and authenticated by the Bond
Trustee in accordance with the Bond Indenture, will be validly
issued and outstanding and entitled to the benefits of the
Indenture.
(v.) neither the related Deposit Trust Agreement
nor the Certificate Trust Agreement is required to be qualified
under the Trust Indenture Act of 1939, as amended, and the
respective trusts created thereunder are not required to be
registered under the Investment Company Act of 1940, as amended;
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(vi.) the Bond Indenture satisfies the requirements
and is qualified under the Trust Indenture Act of 1939, as
amended.
(vii.) the related Registration Statement is
effective under the Act and, to the best of such counsel's
knowledge, no stop order with respect thereto has been issued,
and no proceeding for that purpose has been instituted or
threatened by the Commission; such Registration Statement and the
related Prospectus, and each amendment or supplement thereto
(except the financial statements and schedules and other
financial and statistical data included therein and the documents
incorporated by reference therein) applicable to the related
Offered Certificates and the obligations of the Company relating
thereto, as of their respective effective or issue dates,
appeared on their face to be appropriately responsive in all
material respects to the requirements of the Act and the rules
and regulations thereunder; and no information has come to the
attention of such counsel that causes it to believe that (A) such
Registration Statement (except any document incorporated by
reference therein) as of the date it became effective, or such
Registration Statement (except as aforesaid, and except the
financial statements and schedules and the other financial and
statistical data included therein, the documents incorporated by
reference therein) as of the date the most recent post effective
amendment thereto, if any, became effective, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or (B) such Prospectus (except
any document incorporated by reference therein) or any amendment
or supplement thereto (except as aforesaid, and except the
financial statements and schedules and the other financial and
statistical data included therein and the documents incorporated
by reference therein), as of their respective issue dates or at
the related Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state any
material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading;
(viii.) the statements set forth under the heading
"Description of the Certificates" and "Description of the
Underlying Bond" in the related Prospectus, insofar as such
statements purport to summarize certain provisions of the related
Certificate Trust Agreement and the related Offered Certificates,
provide a fair summary of such provisions;
(ix.) the statements set forth in the related
Prospectus under the headings (a) "Certain Legal Aspects of the
Mortgage Loans" (insofar as they relate specifically to the
purchase, ownership and disposition of the related Offered
Certificates) to the extent that they constitute matters of law
or legal conclusions, provide a fair summary of such laws and
conclusions; (b) "Certain Federal Income Tax Consequences"
(insofar as they relate specifically to the purchase, ownership
and disposition of the related Offered Certificates) and
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constitute conclusions of law, are true and correct in all
material respects; and (c) "ERISA Considerations" (insofar as
they relate specifically to the purchase, ownership and
disposition of such Offered Certificates) and describe certain
provisions of federal statutes and regulations, have been
reviewed by such counsel, and such statements fairly describe
such provisions and regulations;
(x.) assuming compliance with all provisions of the
related Certificate Trust Agreement, for federal income tax
purposes, (A) if any election is made to treat the assets of the
Certificate Trust Fund as a FASIT, the related Certificate Trust
Fund (and any specified subgrouping therein) will qualify as a
FASIT pursuant to Section 860L of the Internal Revenue Code of
1986, as amended (the "Code"), each Class of Certificates of the
related Series, other than the related Residual Class or Classes,
will constitute a class of "regular interests" in the related
FASIT within the meaning of the Code, and each Class of such
Certificates specified in the related Prospectus as a Class of
Residual Certificates will constitute the "residual interest" in
the related FASIT within the meaning of the Code; (B) if no such
FASIT election is made: the Trust Fund will be treated as a
"grantor trust";
(xi.) assuming that some or all of the Offered
Certificates of the related Series shall be rated at the time of
issuance in one of the two highest rating categories by a
nationally recognized statistical rating organization, each
Offered Certificate so rated will be at the time of issuance, a
"mortgage related security" as such term is defined in Section
3(a)(41) of the Exchange Act; and
(xii.) the conditions to the use by the Depositor
of a registration statement on Form S-3/S-11 under the Act, as
set forth in the General Instructions to such Forms, have been
satisfied with respect to the Registration and the Prospectus;
and, to the best of such counsel's knowledge, there are no
certificates or documents which are required to be filed as
exhibits to the Registration Statement pursuant to the Act or the
Rules and regulations thereunder that have not been so filed.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other
documents furnished by, officers of the parties to this Agreement, the
related Transaction Documents or the related Trust Agreement. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto
other than the Company. Such opinion may be qualified, insofar as it
concerns the enforceability of the documents referred to therein, to the
extent that such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights in general and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law). Such opinion may be further qualified
as expressing no opinion as to (x) the statements in the
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related Prospectus under the heading "Certain Legal Aspects of the
Mortgage Loans", except insofar as such statements relate to the laws of
the State of California and the laws of the United States, and (y) the
statements in such Prospectus under the headings "ERISA Considerations"
and "Certain Federal Income Tax Consequences", except insofar as such
statements relate to the laws of the United States. In addition, such
opinion may be qualified as an opinion only on the law of the States of
California, Delaware and the federal law of the United States of
America.
(d) The General Counsel for the Depositor shall have
furnished to the Underwriter an opinion, dated the related Closing Date,
to the effect that:
(i.) The Depositor has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power to own its
properties, to conduct its business as described in the related
Prospectus and to enter into and perform its obligations under
this Agreement, the related Terms Agreement, and the other
Transaction Documents of the related Series to which it is a
party;
(ii.) The Depositor has full power and authority
to sell the Certificates as contemplated herein and in the
related Agreement;
(iii.) No consent, approval, authorization or order
of any court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated
herein or in the related Transaction Documents to which it is a
party, except such as may be required under the blue sky laws of
any jurisdiction and such other approvals as have been obtained;
(iv.) Neither the issuance of the Certificates of
the related Series nor delivery of the related Offered
Certificates, nor the consummation of any other of the
transactions contemplated in this Agreement, the related Terms
Agreement or the related Transaction Documents to which the
Depositor is a party, nor the fulfillment of the terms of the
related Certificates, this Agreement, or the related Terms
Agreement or Transaction Documents to which it is a party, will
conflict with or violate any term or provision of the articles of
incorporation or by-laws of the Depositor or any statute, order
or regulation applicable to the Depositor of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over the Depositor and will not conflict
with, result in a breach or violation or the acceleration of or
constitute a default under the terms of any indenture or other
agreement or instrument known to such counsel to which the
Depositor is a party or by which it or its property is bound; and
(v.) There are no actions, proceedings or
investigations pending or, to the best knowledge of such counsel,
threatened before any court, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement, the
related Terms Agreement, the related Certificates, or the related
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Transaction Documents to which it is a party , (ii) seeking to
prevent the issuance of the Certificates of the related Series or
the consummation by the Depositor of any of the transactions
contemplated by this Agreement, such Terms Agreement or the
related Transaction Documents to which it is a party, or (iii)
which might materially and adversely affect the performance by
the Depositor of its obligations under, or the validity or
enforceability of, this Agreement, such Terms Agreement, the
related Certificates or the related Transaction Documents to
which it is a party.
In rendering her opinion such counsel may rely as to matters of fact, to
the extent deemed proper and as stated therein, on certificates of
responsible officers of the Depositor or public officials. In addition,
such opinion may be qualified as an opinion only on the laws of the
State of Delaware.
(e) The Underwriter shall have received from counsel for
the Underwriter, such opinion or opinions, dated the related Closing
Date, with respect to the issuance and sale of the Certificates of the
related Series, the related Registration Statement, the related
Prospectus and such other related matters as the Underwriter may
reasonably require, and the Company shall have furnished to such counsel
such documents as the Underwriter may reasonably request for the purpose
of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Underwriter a
certificate of the Company, signed by the President or any Vice
President and the Senior Vice President-Finance or the principal
financial or accounting officer of the Company, dated the related
Closing Date, to the effect that the signers of such certificate have
carefully examined the related Registration Statement (excluding any
Current Reports and any other documents incorporated by reference
therein), the related Prospectus, the Detailed Description referred to
in such Prospectus (excluding any related Current Report), this
Agreement and the related Terms Agreement and that:
(i.) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the related Closing Date with the same
effect as if made on such Closing Date, and the Company has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to such
Closing Date;
(ii.) no stop order suspending the effectiveness of
such Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to their knowledge,
threatened; and
(iii.) nothing has come to their attention that
would lead them to believe that such Registration Statement
(excluding any Current Report) contains any untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading,
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that the related Prospectus (excluding any related Current
Report) contains any untrue statement of a material fact or omits
to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that
the Detailed Description referred to in such Prospectus includes
any untrue statement of a material fact or omits to state any
information which the Prospectus states will be included in such
Detailed Description.
(g) [ ], counsel for the Certificate Trustee, shall have
furnished to the Underwriter an opinion, dated the related Closing Date,
to the effect that:
(i.) the Certificate Trustee has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of __________________ with corporate
power to own its properties and conduct its business as presently
conducted by it, to conduct business as a trustee and to enter
into and perform its obligations under the related Certificate
Trust Agreement;
(ii.) the related Certificate Trust Agreement has
been duly authorized, executed and delivered by the Certificate
Trustee and constitutes the legal, valid and binding agreement of
the Certificate Trustee enforceable against the Certificate
Trustee in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting the enforcement of creditors' rights
generally and to judicial discretion, and general principles of
equity (regardless of whether enforcement is sought in a
proceeding in equity or at law);
(iii.) the Certificate Trustee has duly accepted
its appointment as trustee under the related Certificate Trust
Agreement;
(iv.) no consent, approval, authorization or order
of any [state] or federal court or government agency or body is
required on the part of the Certificate Trustee for the
consummation of the transactions contemplated in the related
Certificate Trust Agreement, except such as may be required under
any federal or state securities law; and
(v.) the performance on the part of the Certificate
Trustee of any of the transactions contemplated in the related
Trust Agreement does not conflict with or result in a breach or
violation of any term or provision of, or constitute a default
under, the charter documents, as amended, or By-Laws of the
Certificate Trustee, or any [state] or federal statute or
regulation applicable to the Certificate Trustee, or to such
counsel's knowledge, any indenture or other agreement or
instrument to which the Certificate Trustee is a party or by
which it is bound, or, to such counsel's knowledge, any order of
any state or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the
Certificate Trustee.
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In addition, such counsel shall furnish to the Underwriter such opinions
as to the treatment of the Trust Fund for purposes of [state] tax law as
are reasonably satisfactory to the Underwriter.
(h) [ ], counsel for the Owner Trustee, shall have
furnished to the Underwriter an opinion, dated the related Closing Date,
to the effect that:
(i.) the Owner Trustee has been duly incorporated
and is validly existing as a corporation in good standing under
the laws of __________________ with corporate power to own its
properties and conduct its business as presently conducted by it,
to conduct business as a trustee and to enter into and perform
its obligations under the related Deposit Trust Agreement;
(ii.) the related Deposit Trust Agreement and Bond
Indenture and any other Transaction Documents to which it is a
party each has been duly authorized, executed and delivered by
the Owner Trustee (not in its individual capacity but solely as
trustee of the Bond Trust) and constitutes the legal, valid and
binding agreement of the Bond Trust enforceable against the Bond
Trust in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting the enforcement of creditors' rights
generally and to judicial discretion, and general principles of
equity (regardless of whether enforcement is sought in a
proceeding in equity or at law);
(iii.) the Owner Trustee has duly accepted its
appointment as trustee under the related Deposit Trust Agreement;
(iv.) no consent, approval, authorization or order
of any [state] or federal court or government agency or body is
required on the part of the Owner Trustee for the consummation of
the transactions contemplated in the Deposit Trust Agreement, the
Bond Indenture or the other Transaction Documents to which the
Owner Trustee is a party, except such as may be required under
any federal or state securities law; and
(v.) the performance on the part of the Owner
Trustee of any of the transactions contemplated in the related
Deposit Trust Agreement, the Bond Indenture or the other
Transaction Documents to which the Owner Trustee is a party does
not conflict with or result in a breach or violation of any term
or provision of, or constitute a default under, the charter
documents, as amended, or By-Laws of the Owner Trustee, or any
[state] or federal statute or regulation applicable to the Owner
Trustee, or to such counsel's knowledge, any indenture or other
agreement or instrument to which the Owner Trustee is a party or
by which it is bound, or, to such counsel's knowledge, any order
of any state or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Owner
Trustee.
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(i) you shall have received an opinion of counsel to the
Bond Trustee, dated the applicable Closing Date, and in the form agreed
to on or prior to the date of the applicable Terms Agreement;
(j) if applicable, you shall have received the opinion of
counsel to the Master Servicer, dated as of the applicable Closing Date,
in form and substance satisfactory to your counsel, to the effect that:
(i.) the Master Servicer has been duly organized
and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation and is duly
qualified to do business, and is in good standing, as a foreign
corporation under the laws of each jurisdiction in which the
performance of its duties under the applicable agreement would
require such qualification;
(ii.) the execution and delivery by the Master
Servicer of the applicable agreement is within the corporate
power of the Master Servicer and has been duly authorized by all
necessary corporate action on the part of the Master Servicer;
and neither the execution and delivery of instrument, nor the
consummation of the transactions provided for therein, nor
compliance with the provisions thereof, will conflict or
constitute a breach of, or default under, any contract,
indenture, mortgage, loan agreement, note, lease, deed of trust,
or other instrument to which the Master Servicer is a party or by
which it may be bound, nor will such action result in any
violation of the provisions of the charter or bylaws of the
Master Servicer or any law, administrative regulation or
administrative or court decrees;
(iii.) the applicable agreement has been duly and
validly authorized, executed and delivered by the Master Servicer
and assuming due authorization, execution and delivery by the
Bond Trustee constitutes the valid and binding obligation of the
Master Servicer, enforceable in accordance with its terms,
subject, as the enforcement of remedies, to (A) applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to creditors' rights generally as from time to time in
effect, and (B) to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(k) [ ] shall have furnished to the Underwriter a letter,
dated as of the date of the related Terms Agreement, in form and
substance satisfactory to the Underwriter, stating in effect that they
have performed certain specified procedures as a result of which they
have determined that such information as the Underwriter may reasonably
request of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived from
the general accounting records of the Company) set forth in the related
Prospectus Supplement agrees with the accounting records of the Company,
excluding any questions of legal interpretation.
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(l) [ ] shall have furnished to the Underwriter a letter,
dated as of the related Closing Date, in form and substance satisfactory
to the Underwriter, stating in effect that they have performed certain
specified procedures as a result of which they have determined that such
information as the Underwriter may reasonably request of an accounting,
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general accounting
records of the Company and which is obtained from an analysis of a
sample of the Mortgage Loans included in the related Mortgage Pool) set
forth in the related Prospectus Supplement and in the Detailed
Description relating to such Prospectus Supplement is mutually
consistent and agrees with the accounting records of the Company and,
where applicable, the related Mortgage Loan files of the Company,
excluding any questions of legal interpretation.
(m) The Offered Certificates of the related Series shall
have received the ratings specified in the related Terms Agreement (the
"Required Ratings").
(n) Prior to the related Closing Date, the Company shall
have furnished to the Underwriter such further information, certificates
and documents as the Underwriter may reasonably request.
(o) If any Certificates of the related Series are to be
sold to any other underwriter and/or offered in reliance upon an
exemption from the registration requirements of the Act, the sale at or
prior to the related Closing Date of such Certificates to the purchaser
thereof shall have occurred.
(p) Subsequent to the date of the related Terms Agreement,
there shall not have been any change, or any development involving a
prospective change, in or affecting the business or properties of the
Company which the Underwriter concludes in its judgment, after
consultation with the Company, materially impairs the investment quality
of the Offered Certificates of the related Series so as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of such Offered Certificates as contemplated by the related
Prospectus.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects with respect to the particular
Offered Certificates of a Series when and as provided in this Agreement and the
related Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement and the related Terms Agreement shall not
be in all material respects reasonably satisfactory in form and substance to the
Underwriter and its counsel, this Agreement (with respect to the related Offered
Certificates) and the related Terms Agreement and all obligations of the
Underwriter hereunder (with respect to the related Offered Certificates) and
thereunder may be canceled at, or at any time prior to, the related Closing Date
by the Underwriter. Notice of such cancellation shall be given to the Company in
writing, or by telephone or telegraph confirmed in writing.
7. Indemnification and Contribution.
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(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person who controls the Underwriter within the
meaning of the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act, or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement relating to the Underlying Bond or the
Offered Certificates of the applicable Series as it became effective or
in any amendment or supplement thereof, or in such Registration
Statement or the related Prospectus, or in any amendment thereof, or in
the Detailed Description referred to in such Prospectus or arise out of
or are based upon the omission or alleged omission (in the case of any
Computational Materials or ABS Term Sheets (in each case, as defined
herein) in respect of which the Company agrees to indemnify the
Underwriter, as set forth below, when such are read in conjunction with
the related Prospectus and Prospectus Supplement) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the Company
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein (A) in reliance upon and in conformity with
written information furnished to the Company as herein stated by or on
behalf of the Underwriter specifically for use in connection with the
preparation thereof or (B) in any Current Report or any amendment or
supplement thereof, except to the extent that any untrue statement or
alleged untrue statement therein or omission therefrom results (or is
alleged to have resulted) directly from an error (a "Mortgage Pool
Error") in the information concerning the characteristics of the
Mortgage Loans furnished by the Company to the Underwriter in writing or
by electronic transmission that was used in the preparation of either
(x) any Computational Materials or ABS Term Sheets (or amendments or
supplements thereof) included in such Current Report (or amendment or
supplement thereof) or (y) any written or electronic materials furnished
to prospective investors on which the Computational Materials (or
amendments or supplements) were based, (ii) such indemnity with respect
to any Corrected Statement (as defined below) in such Prospectus (or
supplement thereto) shall not inure to the benefit of the Underwriter
(or any person controlling the Underwriter) from whom the person
asserting any loss, claim, damage or liability purchased the
Certificates of the related Series that are the subject thereof if such
person did not receive a copy of a supplement to such Prospectus at or
prior to the confirmation of the sale of such Certificates and the
untrue statement or omission of a material fact contained in such
Prospectus (or supplement thereto) was corrected (a "Corrected
Statement") in such other supplement and such supplement was furnished
by the Company to the Underwriter prior to the delivery of such
confirmation, and (iii) such indemnity with respect to any Mortgage Pool
Error shall not inure to the benefit of the Underwriter (or any person
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controlling the Underwriter) from whom the person asserting any loss,
claim, damage or liability received any Computational Materials (or any
written or electronic materials on which the Computational Materials are
based) or ABS Term Sheets that were prepared on the basis of such
Mortgage Pool Error, if, prior to the time of confirmation of the sale
of the applicable Certificates to such person, the Company notified the
Underwriter in writing of the Mortgage Pool Error or provided in written
or electronic form information superseding or correcting such Mortgage
Pool Error (in any such case, a "Corrected Mortgage Pool Error"), and
the Underwriter failed to notify such person thereof or to deliver to
such person corrected Computational Materials (or underlying written or
electronic materials) or ABS Term Sheets. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement relating to the Offered Certificates of the
applicable Series, and each person who controls the Company within the
meaning of the Act or the Exchange Act to the same extent as the
foregoing indemnities from the Company to the Underwriter, but only with
reference to (A) written information furnished to the Company by or on
behalf of the Underwriter specifically for use in the preparation of the
documents referred to in the foregoing indemnity with respect to the
related Series, or (B) any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) furnished to the Company by the
Underwriter pursuant to Section 8 or Section 9 and incorporated by
reference in such Registration Statement or the related Prospectus or
any amendment or supplement thereof (except that no such indemnity shall
be available for any losses, claims, damages or liabilities, or actions
in respect thereof, resulting from any Mortgage Pool Error, other than a
Corrected Mortgage Pool Error). This indemnity agreement will be in
addition to any liability which the Underwriter may otherwise have. The
Company acknowledges that the statements set forth in [ ] the related
Prospectus Supplement as such statements relate to such Offered
Certificates and [ ] under the heading "Method of Distribution" in such
Prospectus Supplement as such statements relate to such Offered
Certificates constitute the only information furnished in writing by or
on behalf of the Underwriter for inclusion in the related Prospectus
(other than any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) furnished to the Company by the
Underwriter), and the Underwriter confirms that such statements are
correct.
(c) Promptly after receipt by an indemnified party under
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 7.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and
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to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from
such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel approved by the
indemnified party in the case of subparagraph (a) or (b), representing
the indemnified parties under subparagraph (a) or (b), who are parties
to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in paragraph (a)
or (b) of this Section 7 is due in accordance with its terms but is for
any reason held by a court to be unavailable from the Company or the
Underwriter, on grounds of policy or otherwise, or if the indemnified
party failed to give notice under paragraph (c) of this Section 7 in
respect of a claim otherwise subject to indemnification in accordance
with paragraph (a) or (b) of this Section 7, the Company and the
Underwriter shall contribute to the aggregate losses, claims, damages
and liabilities (including legal and other expenses reasonably incurred
in connection with investigating or defending same) to which the Company
and the Underwriter may be subject in such proportion so that the
Underwriter is responsible for that portion represented by the
difference between the proceeds to the Company in respect of the Offered
Certificates appearing on the cover page of the Prospectus Supplement
for the related Series and the total proceeds received by the
Underwriter from the sale of such Offered Certificates (the
"Underwriting Discount"), and the Company is responsible for the
balance; provided, however, that in no case shall the Underwriter be
responsible for any amount in excess of such Underwriting Discount
applicable to the Offered Certificates purchased by the Underwriter
pursuant to this Agreement and the related Terms Agreement.
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Notwithstanding anything to the contrary in this Section 7(d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls the Underwriter within the meaning of either the Act or the Exchange
Act shall have the same rights to contribution as the Underwriter, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the immediately preceding
sentence of this paragraph (d).
8. Computational Materials and Structural Term Sheets. (a) Not
later than 2:00 p.m., New York time, on the business day before the date on
which the Current Report relating to the Offered Certificates of a Series is
required to be filed by the Company with the Commission pursuant to Section 5(b)
hereof, the Underwriter shall deliver to the Company five complete copies of all
materials provided by the Underwriter to prospective investors in such Offered
Certificates that constitute (i) "Computational Materials" within the meaning of
the no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇,
Peabody & Co. Incorporated, and ▇▇▇▇▇▇ Structured Asset Corporation and the
no-action letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together, the
"▇▇▇▇▇▇ Letters"), the filing of which material is a condition of the relief
granted in such letter (such materials being the "Computational Materials"), and
(ii) "Structural Term Sheets" within the meaning of the no-action letter dated
February 17, 1995 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (the "PSA Letter"), the filing
of which material is a condition of the relief granted in such letter (such
materials being the "Structural Term Sheets"). Each delivery of Computational
Materials and Structural Term Sheets to the Company pursuant to this paragraph
(a) shall be effected by delivering four copies of such materials to counsel for
the Company on behalf of the Company at the address specified in Section 3
hereof and one copy of such materials to the Company.
(b) The Underwriter represents and warrants to and agrees
with the Company, as of the date of the related Terms Agreement and as
of the Closing Date, that:
(i.) the Computational Materials furnished to the
Company pursuant to Section 8(a) constitute (either in original,
aggregated or consolidated form) all of the materials furnished
to prospective investors by the Underwriter prior to the time of
delivery thereof to the Company that are required to be filed
with the Commission with respect to the related Offered
Certificates in accordance with the ▇▇▇▇▇▇ Letters, and such
Computational Materials comply with the requirements of the
▇▇▇▇▇▇ Letters;
(ii.) the Structural Term Sheets furnished to the
Company pursuant to Section 8(a) constitute all of the materials
furnished to prospective
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investors by the Underwriter prior to the time of delivery
thereof to the Company that are required to be filed with the
Commission as "Structural Term Sheets" with respect to the
related Offered Certificates in accordance with the PSA Letter,
and such Structural Term Sheets comply with the requirements of
the PSA Letter; and
(ii.) on the date any such Computational Materials
or Structural Term Sheets with respect to such Offered
Certificates (or any written or electronic materials furnished to
prospective investors on which the Computational Materials are
based) were last furnished to each prospective investor and on
the date of delivery thereof to the Company pursuant to Section
8(a) and on the related Closing Date, such Computational
Materials (or such other materials) or Structural Term Sheets did
not and will not include any untrue statement of a material fact
or, when read in conjunction with the related Prospectus and
Prospectus Supplement, omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
Notwithstanding the foregoing, the Underwriter makes no representation or
warranty as to whether any Computational Materials or Structural Term Sheets (or
any written or electronic materials on which the Computational Materials are
based) included or will include any untrue statement resulting directly from any
Mortgage Pool Error (except any Corrected Mortgage Pool Error, with respect to
materials prepared after the receipt by the Underwriter from the Company of
notice of such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error).
(c) The Underwriter shall cause a firm of public
accountants to furnish to the Company a letter, dated as of the date on
which the Underwriter delivers any Computational Materials (which term
shall be deemed to include, for purposes of this paragraph (c),
calculated statistical information delivered to prospective investors in
the form of a Structural Term Sheet) to the Company pursuant to Section
8(a), in form and substance satisfactory to the Company, stating in
effect that they have verified the mathematical accuracy of any
calculations performed by the Underwriter and set forth in such
Computational Materials.
(d) The Underwriter acknowledges and agrees that any
Computational Materials or Structural Term Sheets with respect to any
Series of Certificates furnished to prospective investors from and after
______, 1998 have been prepared and disseminated by the Underwriter and
not by or on behalf of the Company, and that such materials included and
shall include a disclaimer in form satisfactory to the Company to the
effect that such materials have been prepared and disseminated by the
Underwriter, and that the content and accuracy of such materials have
not been reviewed by the Company.
(e) If, at any time when a prospectus relating to the
Offered Certificates of a Series is required to be delivered under the
Act, it shall be necessary to
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amend or supplement the related Prospectus as a result of an untrue
statement of a material fact contained in any Computational Materials or
Structural Term Sheets provided by the Underwriter pursuant to this
Section 8 or the omission to state therein a material fact required,
when considered in conjunction with the related Prospectus and
Prospectus Supplement, to be stated therein or necessary to make the
statements therein, when read in conjunction with the related Prospectus
and Prospectus Supplement, not misleading, or if it shall be necessary
to amend or supplement any Current Report relating to any Computational
Materials or Structural Term Sheets to comply with the Act or the rules
thereunder, the Underwriter promptly will prepare and furnish to the
Company for filing with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will
effect such compliance. The Underwriter represents and warrants to the
Company, as of the date of delivery of such amendment or supplement to
the Company, that such amendment or supplement will not include any
untrue statement of a material fact or, when read in conjunction with
the related Prospectus and Prospectus Supplement, omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
Underwriter makes no representation or warranty as to whether any such
amendment or supplement will include any untrue statement resulting
directly from any Mortgage Pool Error (except any Corrected Mortgage
Pool Error, with respect to any such amendment or supplement prepared
after the receipt by the Underwriter from the Company of notice of such
Corrected Mortgage Pool Error or materials superseding or correcting
such Corrected Mortgage Pool Error).
9. Collateral Term Sheets. (a) Prior to the delivery of any
"Collateral Term Sheet" within the meaning of the PSA Letter, the filing of
which material is a condition of the relief granted in such letter (such
material being the "Collateral Term Sheets"), to a prospective investor in any
Offered Certificates, the Underwriter shall, in order to facilitate the timely
filing of such material with the Commission, notify the Company and its counsel
by telephone of its intention to deliver such materials and the approximate date
on which the first such delivery of such materials is expected to occur. Not
later than 2:00 p.m., New York time, on the business day immediately following
the date on which any Collateral Term Sheet was first delivered to a prospective
investor in such Offered Certificates, the Underwriter shall deliver to the
Company five complete copies of all materials provided by the Underwriter to
prospective investors in the Offered Certificates that constitute "Collateral
Term Sheets." Each delivery of a Collateral Term Sheet to the Company pursuant
to this paragraph (a) shall be effected by delivering four copies of such
materials to counsel for the Company on behalf of the Company at the address
specified in Section 3 hereof and one copy of such materials to the Company.
(Collateral Term Sheets and Structural Term Sheets are, together, referred to
herein as "ABS Term Sheets.") At the time of each such delivery, the Underwriter
shall indicate in writing that the materials being delivered constitute
Collateral Term Sheets, and, if there has been any prior such delivery with
respect to the related Series, shall indicate whether such materials differ in
any material respect from any Collateral Term Sheets previously delivered to the
Company with respect to such Series pursuant to this Section 9(a) as a result of
the occurrence of a material change in the characteristics of the related
Mortgage Loans.
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(b) The Underwriter represents and warrants to and agrees
with the Company as of the date of the related Terms Agreement and as of
the Closing Date, that:
(i.) The Collateral Term Sheets furnished to the
Company pursuant to Section 9(a) constitute all of the materials
furnished to prospective investors by the Underwriter prior to
time of delivery thereof to the Company that are required to be
filed with the Commission as "Collateral Term Sheets" with
respect to the related Offered Certificates in accordance with
the PSA Letter, and such Collateral Term Sheets comply with the
requirements of the PSA Letter; and
(ii.) On the date any such Collateral Term Sheets
with respect to such Offered Certificates were last furnished to
each prospective investor and on the date of delivery thereof to
the Company pursuant to Section 9(a) and on the related Closing
Date, such Collateral Term Sheets did not and will not include
any untrue statement of a material fact or, when read in
conjunction with the Prospectus and Prospectus Supplement, omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
Notwithstanding the foregoing, the Underwriter makes no representation or
warranty as to whether any Collateral Term Sheet included or will include any
untrue statement or material omission resulting directly from any Mortgage Pool
Error (except any Corrected Mortgage Pool Error, with respect to materials
prepared after the receipt by the Underwriter from the Company of notice of such
Corrected Mortgage Pool Error or materials superseding or correcting such
Corrected Mortgage Pool Error).
(c) The Underwriter acknowledges and agrees that any
Collateral Term Sheets with respect to any Series of Certificates
furnished to prospective investors from and after the date hereof shall
include a disclaimer in form satisfactory to the Company, and to the
effect that the information contained in such materials supersedes the
information contained in any prior Collateral Term Sheet with respect to
such Series of Offered Certificates and will be superseded by the
description of the related Mortgage Loans in the related Prospectus
Supplement and in the Detailed Description relating to such Prospectus
Supplement to be filed under cover of Form 8-K. The Underwriter agrees
that it will not represent to prospective investors that any Collateral
Term Sheets were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the
Offered Certificates of a Series is required to be delivered under the
Act, it shall be necessary to amend or supplement the related Prospectus
as a result of an untrue statement of a material fact contained in any
Collateral Term Sheets provided by the Underwriter pursuant to this
Section 9 or the omission to state therein a material fact required,
when considered in conjunction with the related Prospectus and
Prospectus Supplement, to be stated therein or necessary to make the
statements therein, when read in conjunction with the related Prospectus
and Prospectus Supplement, not misleading, or if it shall be
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necessary to amend or supplement any Current Report relating to any
Collateral Term Sheets to comply with the Act or the rules thereunder,
the Underwriter promptly will prepare and furnish to the Company for
filing with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance. The Underwriter represents and warrants to the Company, as
of the date of delivery of such amendment or supplement to the Company,
that such amendment or supplement will not include any untrue statement
of a material fact or, when read in conjunction with the related
Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, the Underwriter makes no
representation or warranty as to whether any such amendment or
supplement will include any untrue statement resulting directly from any
Mortgage Pool Error (except any Corrected Mortgage Pool Error, with
respect to any such amendment or supplement prepared after the receipt
by the Underwriter from the Company of notice of such Corrected Mortgage
Pool Error or materials superseding or correcting such Corrected
Mortgage Pool Error).
10. Default of Underwriters. If any Underwriter or Underwriters
participating in an offering of Certificates default in their obligations to
purchase Certificates hereunder and under the Terms Agreement and the aggregate
principal amount of such Certificates which such defaulting Underwriter or
Underwriters agreed, but failed, to purchase does not exceed 10% of the total
principal amount of the Certificates set forth in such Terms Agreement, you may
make arrangements satisfactory to the Depositor for the purchase of such
Certificates by other persons, including any of the Underwriters participating
in such offering, but if no such arrangements are made within a period agreed to
by you and the Company after the applicable Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
total commitments hereunder and under such Terms Agreement, to purchase the
Certificate which such defaulting Underwriters agreed but failed to purchase. If
any Underwriter or Underwriters so default and the aggregate principal amount of
Certificates with respect to which such default or defaults occur is more than
10% of the total principal amount of the Certificates set forth in such Terms
Agreement and arrangements satisfactory to you and the Depositor for the
purchase of such Certificates by other persons are not made within such period
agreed to by you and the Company after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except as provided in Section 11. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
11. Termination. You, [as Representative of the Underwriters
named in any Terms Agreement,] may also terminate such Terms Agreement,
immediately upon notice to the Company, at any time at or prior to the
applicable Closing Date, (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information is given in the
Registration Statement or Prospectus, any change or any development involving a
prospective change, in or affecting the condition, financial or otherwise,
earnings, affairs or business of the Company or the Certificate Trust Fund,
whether or not arising in the ordinary course of business, which in your
judgment would materially impair the market for, or the
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investment quality of, the Certificates, or (ii) if there has occurred any
outbreak of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable to market the Certificates or enforce contracts for the sale of
the Certificates, or (iii) if trading generally on either the New York Stock
Exchange or the American Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either federal, New York or California authorities.
12. Representations and Indemnities to Survive Delivery. The
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement and the related Terms Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriter
or the Company or any of the officers, directors or controlling persons referred
to in Section 7 hereof, and will survive delivery of and payment for the related
Offered Certificates. The provisions of Section 7 hereof shall survive the
termination or cancellation of this Agreement and the related Terms Agreement.
13. Successors. This Agreement and the related Terms Agreement
will inure to the benefit of and be binding upon the parties hereto and thereto
and their respective successors and the officers, directors and controlling
persons referred to in Section 7 hereof, and their successors and assigns, and
no other person will have any right or obligation hereunder or thereunder. No
purchaser of any Offered Certificate from the Underwriter shall be deemed a
successor or assign by reason of such purchase.
14. APPLICABLE LAW. THIS AGREEMENT AND THE RELATED TERMS
AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
15. Miscellaneous. This Agreement, as supplemented by the related
Terms Agreement, supersedes all prior and contemporaneous agreements and
understandings relating to the subject matter hereof. This Agreement and the
related Terms Agreement or any term of each may not be changed, waived,
discharged or terminated except by an affirmative written agreement made by the
party against whom enforcement of the change, waiver, discharge or termination
is sought. The headings in this Agreement and the related Terms Agreement are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof or thereof.
16. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be delivered to
it at the address first above written; or if sent to the Company, will be
delivered to American Residential Eagle, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: _______________.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriter.
Very truly yours,
AMERICAN RESIDENTIAL EAGLE, INC.
By:
---------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first
above written.
[UNDERWRITER]
[acting on behalf of itself and, if applicable, as the Representative of the
several Underwriters named in the Terms Agreement].
By:
-----------------------------
Name:
Title:
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EXHIBIT A
AMERICAN RESIDENTIAL EAGLE, INC.
MORTGAGE-BACKED CERTIFICATES
SERIES ____-__
TERMS AGREEMENT
(to Standard Terms Underwriting Agreement,
dated __, 199_
between the Company and the Underwriter)
American Residential Eagle, Inc. New York, New York
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ [Date]
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Address]
[UNDERWRITER] (the "Underwriter") agrees, subject to the terms
and provisions herein and of the captioned Underwriting Agreement (the
"Underwriting Agreement"), to purchase such Classes of Series ____-__
Certificates specified in Section 2(a) hereof (the "Offered Certificates"). This
letter supplements and modifies the Underwriting Agreement solely as it relates
to the purchase and sale of the Offered Certificates described below. The Series
____-__ Certificates are registered with the Securities and Exchange Commission
by means of an effective Registration Statement (No. 333-47311). Capitalized
terms used and not defined herein have the meanings given them in the
Underwriting Agreement.
Section 1. The Mortgage Pool: The Series ____-__ Certificates
shall evidence the entire beneficial ownership interest in a Collateralized
Mortgage Bond (the "Underlying Bond") secured by a mortgage pool (the "Mortgage
Pool") of conventional, [fixed rate], [adjustable rate] fully amortizing one- to
four-family residential mortgage loans (the "Mortgage Loans") having the
following characteristics as of ________ __, ____ (the "Cut-off Date"):
(a) Terms of the Underlying Bond: [ ].
(b) Aggregate Principal Amount of the Mortgage Pool: $[ ]
aggregate principal balance as of the Cut-off Date, subject to [an
upward or downward variance of up to [ ]%, the precise aggregate
principal balance to be determined by the Company][a permitted variance
such that the aggregate Scheduled Principal Balance thereof will be not
less than $[ ] or greater than $[ ]].
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(c) Original Terms to Maturity: The original term to maturity of
each Mortgage Loan included in the Mortgage Pool shall be between ___
and ___ years.
Section 2. The Certificates: The Offered Certificates shall be
issued as follows:
(a) Classes: The Offered Certificates shall be issued with the
following Class designations, interest rates and principal
balances, subject in the aggregate to the variance referred to in
Section 1(a)[and, as to any particular Class, to an upward or
downward variance of up to [ ]%]:
Principal Interest Class Purchase
Class Balance Rate Price Percentage
----- ------- ---- ----------------
(b) The Offered Certificates shall have such other
characteristics as described in the related Prospectus.
Section 3. Terms of Sale of Offered Certificates: The Depositor
agrees to sell to [______________________________ (the "Underwriter[s]")] and
[and ___________________ each] agree[s][, severally and not jointly,] to
purchase from the Depositor the Offered Certificates in the principal amounts
and prices set forth beneath their [respective] name[s] on Schedule 1. The
purchase price for each class of the Offered Certificates shall be the
applicable Purchase Price Percentage set forth in Schedule 1 plus accrued
interest at the applicable initial interest rate per annum from and including
the Cut-off Date up to, but not including, the Closing Date.
[The Underwriter[s] will offer the Offered Certificates to the
public from time to time in negotiated transactions or otherwise at varying
prices to be determined at the time of sale.]
Section 4. Required Ratings: The Offered Certificates shall have
received Required Ratings of at least [ ] from [ ].
Section 5. Tax Treatment:[One or more elections will be made to
treat the assets of the Trust Fund as a FASIT.] [The Trust Fund will be treated
as a "grantor trust" for federal income tax purposes.]
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Section 6. Closing Date: 10:00 a.m., New York time, on or about ,
19__. On the Closing Date, the Company will deliver the Offered Certificates to
the Underwriter against payment therefor.
[Section 7. Additional Expenses:]*
--------
* to be inserted if applicable.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Underwriter and the Company.
Very truly yours,
[UNDERWRITER]
By:
------------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
AMERICAN RESIDENTIAL EAGLE, INC.
By:
------------------------------------
Name:
Title:
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Schedule 1
Approximate
Approximate Approximate Amount
Initial Amount Purchased by
Certificate Purchase Purchased by [_________]
Certificate Principal Price ▇▇▇▇▇▇ [_______]
Class Rate Amount(1) Percentage Brothers [ ]
----- ---- ---------- ---------- ------------ ------------
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
Class $ % $ $
= =========== % = =
Total/ $ % $ $
Wtd Avg
34